Of course, Judge Sotomayor should be confirmed to the Supreme Court. She obviously wasn't my first choice, for reasons I reported three weeks ago, having mostly to do with concerns about her temperament reported to me by former clerks and New York prosecutors. But I hope and assume the White House wrestled seriously with those questions of temperament and weighed them against Sotomayor's other obvious strengths.
In my view the strongest case to be made for Sotomayor is not her inspiring life story: Clarence Thomas overcame similar personal obstacles, but far from giving him a sense of empathy, his background has created a sense of anger and ideological rigidity. Instead, the strongest case to be made for Sotomayor is the idea that the range of her experience--as a trial judge, appellate judge, and commercial litigator--might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word. This hope, however, flies in the face of the idea that she will be a liberal counterpart to Antonin Scalia--a fierce and eloquent advocate for liberal views. And she does not have the range of political experience of the politicians Obama considered--Janet Napolitano and Jennifer Granholm. For these reasons, the role she will, in fact, play on the Court is difficult to discern from her record.
Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court--not that she didn't have the potential to be a fine justice. Questions of temperament are often overlooked, but history suggests that they are the most relevant in predicting judicial success. (Justice Scalia may be a brilliant bomb-thrower, but has failed in his attempts to build coalitions and bipartisan majorities.) Now is the time to think more broadly about the role Justice Sotomayor is likely to play on the Supreme Court, and I look forward to doing that in the weeks ahead.